Dale Carpenter – FlaLawhttps://www.law.ufl.edu/flalaw
University of Florida Levin College of LawThu, 23 Feb 2017 13:35:36 +0000en-UShourly1https://wordpress.org/?v=4.8.1Federalist Society speaker speaks on same-sex marriage as a democratic movementhttps://www.law.ufl.edu/flalaw/2010/02/federalist-society-speaker-speaks-on-same-sex-marriage-as-a-democratic-movement/
Mon, 15 Feb 2010 16:57:11 +0000http://www.law.ufl.edu/wpflalaw/?p=3522According to Dale Carpenter, the battle about same-sex marriage is just starting to take place between intellectual conservatives. Carpenter, brought to campus by the Federalist Society, spoke Wednesday about same-sex marriage from a Burkean conservative viewpoint.

“At least in my view, the debate in this country on the left, loosely speaking, over the issue of same-sex marriage is over,” said Carpenter, Earl R. Larson Professor of Civil Rights and Civil Liberties Law University of Minnesota Law School. “It has been resolved in favor of full legal recognition of same-sex couples and there is some remaining debate over what to call it, what form it should take and so forth. The basic principle has been embraced. The interesting discussion on this issue in the country right now is happening in the middle and especially on the right.”

Carpenter described Burkean conservatism in a nutshell as respecting tradition and history, distrusting abstract theorizing about the world and opposing convulsive change in favor of slow, well-sustained progress. Carpenter said it would be easy to argue against same-sex marriage from a Burkean perspective.

First of all, it would be a change and a Burkean conservative would be suspicious of that alone. Second, marriage has never included same-sex unions in its definition. Third, proponents are using abstract reasons – tolerance, inclusion and equality – to argue for same-sex marriages that do not address the real issue. Finally, a Burkean conservative would argue that these changes are being thrust upon us by impatient activists and courts that have no respect for tradition.

To refute these arguments, Carpenter said many of the laws that apply to homosexuals were made without knowing much about them. Many myths were cast upon homosexuals including that they were dangerous, predatory toward children, psychopathic, maladjusted and sick, Carpenter said.

“Much public policy in this country toward homosexuals was developed in a time when we didn’t know much about gays and lesbians as a group – how they lived, what they were like, how many there were and so on,” Carpenter said. “So in the absence of this information, we filled in with some myths and stereotypes about homosexuals, some things we believed to be true.”

How America views homosexuals is greatly changing, as evidenced by decriminalization of sodomy laws and demedicalization of being homosexual, Carpenter said. Carpenter conservatively estimated about 9 million homosexuals and 750,000 same-sex couples living together.

“When you think about it, it’s a lot of people who will never have the prospect of marriage in their lives, who are cut off from what a traditionalist would regard as the most important social institution we have for encouraging people to live in stable healthy family and community lives, the most moral life possible, according to a traditionalist, for a sexually active person,” Carpenter said. “It denies to them, to this group of people, the most powerful social and legal institution we have for encouraging the kinds of values that traditionalists say are the most important values in life.”

Carpenter said there would be three types of individual benefits that homosexuals would get from being allowed to marry: legal benefits, care giving benefits and social benefits. Carpenter thinks the legal benefits might be the least important of the three rights. He said social benefits might be the most important reason for letting homosexuals marry.

“It is the way that one person signals to another person in a relationship the depth of the commitment they have to that relationship and moreover it’s the way that that couple signals the importance and the depth and the enduring nature of their commitment to those in their communities – to their friends, to their co-workers, to their families, to everyone else they know,” he said.

Further, Carpenter said every study done has said that children do just as well with homosexual parents. Although many would argue that a married man and woman is the optimal environment for children, Carpenter said they’re missing the point.

“The reason we would say that is that no one seriously involved in this debate over whether we’re going to recognize same-sex marriage or not advocates taking children out of the homes of their gay and lesbian parents, more than a million now,” Carpenter said. “So here’s the choice: it’s not, ‘Are gays the best for raising children or not?’ The choice is, ‘Will the children who are being raised in increasing numbers by gay and lesbian parents – will they be raised in homes where their families enjoy the protections and benefits of marriage or will they not be?’ That’s the real question.”

In addition to individual benefits, Carpenter said the community would reap benefits from allowing same-sex marriage too. Carpenter does not buy that marriage is for procreation only since we allow those who cannot reproduce or do not want children to marry. Carpenter gave four ways that same-sex marriage would benefit the community.

First of all, it would better the lot for gays and lesbians. Second, it would help limit government since married people place fewer demands on the government. Third, it would benefit gay life and culture and help discourage promiscuity, drug use and alcoholism. Finally, there are so many problems with marriage in America right now – divorce, children born out of wedlock, little cultural respect – that it might actually help the institution.

“Instead of being a threat to marriage, imagine that gay marriage might actually be a small part of its revival, of its reinstitutionalization,” Carpenter said. “Think about it this way: it is harder to convince people that marriage really is the gold standard for relationships, that marriage and raising children go together, if a large subclass of the population is living life entirely outside of this institution.”